Obama’s Judicial Agenda

Want to know Obama’s judicial agenda? Just take a look at the American Constitution Society’s (ACS) agenda.

If you haven’t heard of the ACS, you probably were just getting familiar with their conservative counterpart, the Federalist Society.

The Federalist Society — an association of conservative and libertarian lawyers — grew so successful since their founding in 1982 that by 2001, the beginning of the conservative legal movement’s peak in influence, liberals realized they needed a counterpart. Enter the American Constitution Society (a George Soros-funded organization).

President-elect Barack Obama has just named Lisa Brown, the ACS’s executive director, to be his White House Staff Secretary, a position once held by Harriet Miers (see Who Harriet Myers Is Not). Also, ACS Board member Eric Holder has been named to be the next Attorney General.

Professor Cass Sunstein of the University of Chicago has been at the center of the radical left for many years, and he was the godfather of the Senate Democrat’s obstruction of Bush judicial nominees. He promotes himself as President-elect Obama’s judicial advisor.

If the past is any guide, all three of these lawyers and advocates of the ACS may be on the Obama short list for a Supreme Court vacancy, given Democrat dominance of the Senate. Although the ACS’s law school chapters are still playing catch up in numbers with the Federalist society, its membership will soon blossom. It now has friends in the White House and the Justice Department.

Despite the imaging, the similarities between the two legal groups, in fact, are few. The Federalist Society gained its stature at a time when law faculties first became dominated by liberals advocating now-discredited “Critical Legal Studies” and law schools seldom heard a conservative or libertarian voice. In the 1980s, conservative law professors were ostracized, and conservative students were drowned out altogether in classrooms with hisses.

The Federalist Society founded itself on the principle of bringing open debate to law schools, the presentation of two sides, and gradually providing a vessel to question the Living Constitution jurisprudence anchored in the judicial usurpations of the Warren Court. From an early beginning, the Federalists were about process and not particular political solutions and judicial results. In fact, the Federalist Society prides itself on having members who are often on opposite sides of a case.

Not so the ACS. From its beginning, the ACS has pursued a reactionary agenda reflecting that of its liberal funders and radical architects. The high point of its eight years came in 2005 when the ACS co-hosted a conference with the Soros-funded think-tank the Center for American Progress. The “Constitution in 2020” conference at Yale Law School aimed to “set a constitutional agenda for the 21st century.”

The conference assembled a who’s who in liberal thought and politics, including former Clinton White House chief of staff John Podesta, Center for American Progress’ (CAP) president; CAP fellow and former Kennedy Senate counsel Melody Barnes, now named to be President-elect Obama’s Domestic Policy Advisor; and the shadowy Cass Sunstein, who elaborated on the ACS’s “Constitution in 2020 Project,” an outline for how the American Constitution should be rewritten by judges by 2020.

The ACS’s 2020 project is, in effect, an extension of Sunstein’s 2004 book The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever. In turn, the agenda is rooted in Franklin Roosevelt’s 1944 State of the Union address, in which Roosevelt proposed a “second Bill of Rights” including the rights to “a useful and remunerative job,” “a decent home,” “adequate medical care and the opportunity to achieve and enjoy good health,” “adequate protection from the economic fears of old age, sickness, accident, and unemployment,” and “a good education.”

Of course, in the 65 years since Roosevelt’s speech, we know these goals as the foundation of the welfare state and the entitlement culture. Americans have come to accept some programs that have flowed from these aims as part of the national safety net, while others remain hotly debated. The right to a “decent home,” as it has played out in Democrats’ recently unmasked push for low interest, high risk mortgage loans, is the most recent socialist agendum to falter.

In his manifesto, and the ACS’ Constitution in 2020 Project, Sunstein promoted Roosevelt’s call as a blueprint for constitutionalizing welfare entitlements as rights. Recognizing that since actual amendment is likely impossible, Sunstein argues that liberals should look to the federal judiciary to read these rights into the Constitution by recognizing then as part of the nation’s constitutive tradition, just as some conservatives argue that the Declaration of Independence and natural rights should inform our understanding of the Framers’ intent.

This view, together with ACS’s promotion of judicial restraint when it comes to checking Acts of Congress that liberals like and the politicized appointment of judges who adhere to the Living Constitution jurisprudence for rewriting the Constitution, promises to make the ACS agenda well known to all of us as the Obama presidency’s judicial nominations agenda.

If Republican leaders in Congress and at the Republican National Committee do not show that they can walk and chew gum at the same time, history will no doubt record 2008 as the year Americans voted unknowingly to allow judges to rewrite the Constitution.